Yet the story did not end there. In a further twist, during the evening’s second play, the actress Mademoiselle Contat paused mid-declamation, turned to face Salmon, and addressed to her three verses praising the unique beauty of triumphant truth. The entire audience greeted this initiative with thunderous cheer, and the other actors broke out of character to join in the applause.94 By expressing her belief in Salmon’s innocence, Contat not only transformed an unintentionally apropos performance into a deliberately topical one, she also reclaimed, in the process, the position of judge, restricting the spectators to the role of beholders assenting with another’s verdict. The night thus ended on a suggestion of the ease with which judicial theater could be used to influence, if not manipulate, the expression of a supposedly public judgment. (On that note, it is ironic that the verses chosen by Contat appear in a speech highly critical of public opinion, which is portrayed as fickle, gullible, and hasty to condemn without proof.)95 While there is no reason to think of Contat’s intervention as anything but earnest, it exemplifies a broader desire among the theatrical establishment to retain control over these judicial events by staging them.
Indeed, the Salmon episode was far from an isolated, impromptu incident. It was, rather, one of the earliest attempts by a theatrical company to carry out a plan, found in both legal and dramatic pamphlets, to use the theater as a means to inspire public opinion to validate and thus legitimize the verdicts of recent trials. Hence, in Du Théâtre, Mercier had championed the reenactment of recently ended trials, so as to “confirm through the people’s applause the triumph of the laws.”96 Similarly, Louis Philipon de La Madelaine had argued that a special area in public theaters ought to be reserved for those who had suffered the costs and indignities of a trial as the result of an unjust accusation, thereby allowing actors to parade them, and spectators to applaud them.97 The troupe of the Comédie-Française invited Salmon precisely for that purpose—to display her innocence to spectators with the expectation that they would assent. The same applies to Catherine Estinès, also accused of being a poisoner and also, upon being exonerated, invited by a company in Toulouse to attend a play for the first time. Upon seeing the scaffold awaiting the play’s female protagonist, Estinès began shuddering visibly. This reaction at a fate that could have been hers sent a chill throughout the audience, although the same spectators later broke out in wild acclamations at the appearance of Estinès’s lawyers and at the play’s happy ending.98 According to Armand Fouquier, the practice of inviting recently exonerated defendants became sufficiently common for their presence on a given night to be advertised on playbills—a telling inclusion, insofar as it suggests that the actors regarded these invitations as staged spectacles, comparable to the evening’s plays.99 Such scriptedness—the fact that they were planned in advance, were repeated and repetitive, and had predictable outcomes—highlights one of judicial theater’s most significant ambiguities, largely ignored by Mercier, but seized upon, as we will see, by Rousseau and others to condemn it. In staged ceremonies like the ones for Salmon and Estinès, one starts to wonder who actually does the judging. When innocence has already been attributed by the legal and theatrical establishments (the first through a trial and the second through its invitation), does the audience serve any real function, beyond validating the verdicts of more influential arbiters?
Yet although spectators gladly participated in these ritual displays of persecuted but victorious innocence, other incidents suggest that they saw themselves as independent judges, with the right and duty not only to praise correct verdicts but also to speak out against unjust ones, and against the government officials responsible. Meister thus observes in 1774 that the parterre’s longstanding practice of creating “applications” had recently assumed a new judicial dimension, as spectators repeatedly distorted innocuous verses and situations into commentaries on the decisions of the tribunals: “Of late, the parterre of the Comédie-Française has usurped the right to applaud or hiss the court’s sentences.”100 To praise (applaud) but also, and just as importantly, to condemn (hiss): Meister gives several examples of the latter, such as when a quip on “well-paid judges” in La Réconciliation normande was transformed by indignant spectators into a critique of the recent acquittal of the powerful Comte de Morangiès,101 or when the audience of Crispin rival de son maître vented its anger at Louis Valentin Goëzman’s treatment of Pierre-Augustin Caron de Beaumarchais by repeatedly calling out the judge’s name whenever a character mentioned bribery, chicanery, or judicial ineptitude.102 Nor did audiences limit their judgment to existing trials. For them, the theater was both an appellate court, reviewing prior legal decisions, and a trial court, where accusations against political figures under no formal litigation could be formulated and debated. For instance, in the same period as the examples above, the powerful and controversial Chancellor René Nicolas Charles Augustin de Maupeou became the target of frequent indictments by theatergoers.103
Like his idols Voltaire and Diderot and unlike the more radical Mercier, Meister stops short of fully embracing the slide toward a more judicial theater. He criticizes spectators for daring to judge with such limited knowledge of the evidence104 and for showing such insolence toward their superiors—conduct deserving of a trip to the Bastille.105 Yet he immediately adds: “Even while acknowledging their fault, I must confess that I like seeing myself transported to Rome or Athens for an instant, to admire how much a taste for the arts, and especially for the theater, predisposes the mind to enjoy freedom.”106 Here we see, again, the attraction that philosophes like Meister felt for antiquity and for its vision of the dramatic arts as uniquely able to inspire and support a free, popular judgment. By the 1770s, many spectators, consciously or not, shared this judicial vision of the theater. Whether through applications or at the invitation of actors, they found in the theater a way to judge ongoing or recent trials. This mode of reception, while not, of course, entirely new, experienced so marked a growth that Meister flagged it as a novel, “usurped” right. Indeed, it became a common enough practice that, together with the dream, from Palissot to Mercier, of a rebirth of Aristophanes, it attracted the attention of some concerned authors, including Rousseau, who argued that the rise of a judicial conception of theater posed a grave threat to the very rule of law.
Acting Above the Law: Rousseau and the Case Against Judicial Theater
Who, in the end, really judges? This ambiguity, which I noted above, stems from one of the most troubling flaws in Mercier’s judicial theater: the difficulty in tracing the legitimacy of any of its participants. In 1768, the abbe Joseph-Marie Gros de Besplas condemned the rise of judicial theater for precisely that reason: “Illicit personal attacks on stage have seen citizens brought before a tribunal of judges without the authority to judge anyone.”107 What, indeed, gave random spectators the right to judge a fellow citizen? Similarly, Latour denounced the playwrights’ illegitimacy, noting that this distinguished them from official judges, imbued with the king’s authority and entrusted with investigating all accusations before they became public, to ensure that they were honest, disinterested, and supported by evidence.108 In the absence of anyone with the legitimate authority to separate the wheat from the chaff, all accusations would be entertained equally and publicly, including the most calumnious ones. Slander’s threat was made even greater, Latour noted soon after rebuking Diderot for his praise of Aristophanes, by the theater’s tendency to exaggerate